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Office of the Attorney General - State of Texas John Cornyn |
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January 17, 2001 Mr. Sam Haddad
OR2001-0180 Dear Mr. Haddad: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 143278. The Comptroller of Public Accounts (the "comptroller") received a request for information pertaining to audits or audit reports prepared by the comptroller's office pertaining to the Texas Water Development Board ("TWDB") from 1985 to present. You claim that the requested information is excepted from disclosure under sections 552.101, 552.111, and 552.116 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.(1) Initially, we note that some of the submitted documents appear to be made expressly public by section 552.022 of the Government Code. Section 552.022 provides, in pertinent part: (a) Without limiting the amount or kind of information that is public information under this chapter, the following categories of information are public information and not excepted from required disclosure under this chapter unless they are expressly confidential under other law: (1) a completed report, audit, evaluation, or investigation made of, for, or by a governmental body, except as provided by Section 552.108; . . . . (3) information in an account, voucher, or contract relating to the receipt or expenditure of public or other funds by a governmental body[.] Gov't Code § 552.022(a)(1), (3). Some of the submitted documents, which we have marked, appear to be completed audits, reports, and evaluations. Another document appears to be a contract relating to the receipt or expenditure of public or other funds by a governmental body. These types of documents must be released under section 552.022, unless the information is expressly made confidential under other law. Both sections 552.111 and 552.116 of the Government Code are discretionary exceptions under the Public Information Act and do not constitute "other law" for purposes of section 552.022.(2) Although you raise section 552.101 as an exception to disclosure, you do not specify a provision of law, nor are we aware of any provision that makes the marked documents confidential. Accordingly, you must release all responsive documents that are the types of information made public by section 552.022(a)(1) and (a)(3) of the Government Code. You assert that the requested information is excepted from disclosure under section 552.116 of the Government Code. Section 552.116 provides as follows: (a) An audit working paper of an audit of the state auditor or the auditor of a state agency or institution of higher education as defined by Section 61.003, Education Code, is excepted from the requirements of Section 552.021. If information in an audit working paper is also maintained in another record, that other record is not excepted from the requirements of Section 552.021 by this section. (b) In this section: (1) "Audit" means an audit authorized or required by a statute of this state or the United States and includes an investigation. (2) "Audit working paper" includes all information, documentary or otherwise, prepared or maintained in conducting an audit or preparing an audit report, including: (A) intra-agency and interagency communications; and (B) drafts of the audit report or portions of those drafts. Gov't Code § 552.116. You inform us that the submitted information consists of audit working papers from the comptroller's audit of TWDB which is authorized by statute. Based on your representation and our review of the submitted information, we conclude that all of the submitted documents, with the exception of the documents we have marked that may be public information under 552.022, are audit working papers and may be withheld from disclosure under section 552.116 of the Government Code. Because we find that the submitted documents are excepted from disclosure under section 552.116, we need not address your claimed exception under section 552.111 of the Government Code. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the General Services Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Stephen P. Agan
SPA/seg Ref: ID# 143278 Encl. Submitted documents cc: Ms. Amber Dunten
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. 2. Discretionary exceptions are intended to protect only the interests of the governmental body, as distinct from exceptions which are intended to protect information deemed confidential by law or the interests of third parties. See, e.g., Open Records Decision Nos. 630 at 4 (1994) (governmental body may waive attorney-client privilege, section 552.107(1)), 592 at 8 (1991) (governmental body may waive section 552.104, information relating to competition or bidding), 549 at 6 (1990). Discretionary exceptions therefore do not constitute "other law" that makes information confidential. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |